NAIROBI, Kenya, June 5 – A five-judge bench of the High Court has declared unconstitutional an advisory issued by former Chief Justice David Maraga recommending the dissolution of Parliament for failing to implement the Constitution’s two-thirds gender principle.
In a landmark ruling delivered by the Constitutional and Human Rights Division in Nairobi, the judges held that Maraga’s advisory did not constitute a binding constitutional directive capable of compelling the President to dissolve Parliament.
The case stemmed from a long-running dispute over Parliament’s failure to enact legislation required to implement the constitutional requirement that no more than two-thirds of members of elective public bodies be of the same gender.
Petitioners had argued that Parliament had repeatedly failed to fulfil its constitutional obligations despite clear timelines set out in Article 261 of the Constitution for enacting legislation necessary to operationalise various constitutional provisions.
They maintained that Maraga acted within his constitutional mandate when he formally notified the Speakers of the National Assembly and Senate, as well as the Attorney General, that continued non-compliance with the gender rule could trigger constitutional sanctions, including the dissolution of Parliament.
According to the petitioners, years of legislative inaction left the former Chief Justice with little choice but to invoke constitutional enforcement mechanisms to safeguard the supremacy of the Constitution.
Some of the petitioners further urged the court to find that the President was under a constitutional obligation to act upon receiving such advice from the Chief Justice. They argued that Parliament should have been dissolved within a reasonable period, suggesting a maximum of 21 days, and that failure by the President to act should have resulted in Parliament being deemed dissolved automatically.
The petitioners also contended that Parliament’s continued failure to comply with constitutional requirements undermined its standing in legal proceedings relating to its own constitutional breaches.
However, the judges drew a distinction between Parliament’s constitutional obligations and the legal effect of the advisory issued by the former Chief Justice.
The bench affirmed that responsibility for enacting legislation required by the Constitution rests with Parliament as an institution rather than individual lawmakers. The judges emphasized that Parliament remains a continuing constitutional entity whose obligations survive changes in membership and successive electoral cycles.
“The Constitution does not permit institutional failure to defeat its own enforcement mechanisms,” the court observed, stressing that constitutional duties remain enforceable regardless of changes in the composition of Parliament.
Even so, the judges rejected the argument that the Chief Justice’s advisory amounted to a self-executing constitutional instrument capable of automatically triggering the dissolution of Parliament.
The court found that while the Constitution provides consequences for persistent failure to implement its provisions, those consequences must be pursued and enforced strictly within the constitutional framework and cannot arise automatically from an advisory issued by the Chief Justice.
According to the bench, constitutional enforcement mechanisms must be grounded in proper legal interpretation and judicial processes rather than assumptions that an advisory opinion creates binding obligations on the President.
Consequently, the court quashed Maraga’s advisory in its entirety and declared it unconstitutional to the extent that it purported to direct, compel or require the dissolution of Parliament.
